IN THE HIGH COURT OF KARNATAKA AT BANGALURE
Dated this the 23"' day of May, 2003 2' f ,
Before
71:3 HUMBLE MR Jvszmv: §;UL£zVA;§i§ ii4,4i1;§.IJ V
Between:
1. Ganapathy S10 Hanumanth .
By Gangu Wfo Ganapathy --. " .
Venkappa Sio ummaggm 512 A. , _
Gangafilargfo 1' ' ~
Neefalgmfii Sic a.9y.~.;
.°'.V':'*$*'!'-'
7. Bhageemm y.-.s ;
A1} are r/a Dervarhakkazl, Kumtdfaluk
U K District; 'L-3 affair} Smt
Honngirnfinza Wlo Hanumanth Naik &;
'~ of and 7 is the
b{"iste"Laxmm Sic Venkappa Naik Petitianem
(By gr; -Adv.)
*-Lmd Tfibgféial, Kumia
V. If V» fimi W/o Venkappa Naik
f S/0 Devappa Naik
~ .. sénx Bhavani Wlo Gangadhar Nail:
" A = Kamala wxo Narayan Nail:
Writ Petition 4333:; ix 2:223 (LR ~
6. Parwathi Wfo Manjunath Naik Respondm3_ts
(By Sri P D Vishwanath, Adv. for E26;
Sri Nadiga Shivanadappa, GP for State)
This Writ Petition is filed under An.;25x227 of''ah§'jjjco§siim;ion: "
praying to quash the order {iated 20.6.2803 4 'ar.noX.;;re .A_ b}'._;he"1and"'.
Tribunal, Kumta.
This Writ petition having been [reserved '1'To;"'(Z3rders,»'iiiz:V L.
the following:
OM53
Petitioners have soughtiifor_oissi1a*n3e::'of of--certiorari to quash
the order dated 2o.5..j2fl(>3 iA«.ig'~.;m Land Tribunal,
Kumta teépeofttiiiof éoiiieeziiiiod L$iiitis"Vand also to issue a writ of
mandamuvs-to irogis:ori"potitioi:3;~:é occupants of the petition schedule
Sands under of Vtiho Act to an exten: of H3"! share in
, ' all tlviciipetitioo sctiééu3e___pmpenics and to reject the application of 4"'
Bhaai§i1é__W/o Gangadhar Naik claiming exclusive right over
vinage.
one Venku Narayana Naik file gand father of the
"potitioneiwaixd the contesting respondents was in actual possession of the
n lands as a tenant from 193162 and in this regard, RTC’. is
.i hgpodmed at armexure B. He had four sons by name Hanumantlua, Masti,
Devappa and Lakshman. Petitiogxers 1 to 3 are the sons of Hanumanth
V
and petitioners 4 to 7 are the children of Laxman Venku lfiaik.
Respondents 2 to 6 are the legal representatives of Smt
Devappa Nailc. One Parameshwari Masti Naik viz., w!o_.tx§le$ti”i _
son of Venku Narayana Naik had filed Form 7 for it
respect of the scheduled lands and she died iL;Asuelese.A L .l
i.e., sons of late Venku Narayana Nail: retrained _i.#IiIdiVid3:’.’k’
After their death, the family of Venkui
:21: date. As on 1.3.1974 au§§;*~;;z-so:jeefsgheeuleiiianés were in
actual possession and cultivatiotxiioti” There was no
partition by member was in
separate Since the petitioners
were in of the schedule properties as
tenants along’ withvvtlte _ottler”feit1fly members including the contesting
V. respontlettte,~ they are application under S45 of the Land Reforms
ta5s.ct.geelci:t:gtAoc.ct1p:u1cy rights of all the petition schedule propexties along
“of the family. Simultaneously, even the contesting
_ respondents ‘also filed application seeking grant of occupancy rights
.e>:clnsivel3!— to them. One Parameshwari Devappa Nail: filed Form 7 with
_.l’:*e§;*:ectl~’lto Sy.No.SO6flA3, 483!23A 1, 483!2C and 433/3 in a single
i _.;t1:1-gixlicatiorx and the second application in Form 7 was tiled in respect of
the property in Heravatta Village regarding Sy.Nos,17flfB, 17/2. 17.8, 18,
19 & 20. The 4″‘ respondent Bhavani Gangadltar Naili also filed sepamte
Form 7 for occupancy rights in respect of Sy.No.5(}6/IC of Karma
Viliage. By order dated 26.12.1994, the Land Tribunal afier ,iieving
registered ail the applications of the petitioners as well as the
respondents, passed an order granting occupancy rights to: the it
1z’3’d share each. According to the petitior1ers,–§’arar’;iesh’\iI5ar;a’i it
Naik and Bhavani Gangadhar Naik made iifalee aria hivoiode
filing WP 6866f1994 and 8S64f199iiio:iiiixr1ing exomoiveii fig1tif_S”‘h:..r:epeet ‘V L’
of certain lands. However, a commoix.or’der, botii~theAvs(ii.t petitions
were dismissed on 9.9.1998} ohailenged in two writ
appeals and the order dated:.9e.9.d]§f98V by order dated
26.2.2092,’ the–.rriéi;terdiJs%as–reioVrttided hack to the Land Tribunal. Pursuant
to the saiiie, I;;tr1d’iiae”peseed the impugied order at anziexure
A. Hence, .o-rid grounds,
, (‘Heard the’~eo1insel: representing the parties as we-1} as the
Gofieriaziieht Phéader.
It.__vis’ ergument of the petitioners’ counsel that it is nobody’s
: ease thetearlier a partition has taken place and rather, the status of the
” f}i.’ni_lS;’ remahied joint as the name of Devappa Nails: was shown as Kartha
Vi , the records. It is further argued that the presumption is always in favour
of jointness. Accordingly, in this context, he has relied upon the decision
in the case of Indra Narayan Vs Reap Ntzrayan & 01-s – AIR 15i”ir’1jSC
1962. It is further submitted that there eouid not have u
there was a deed registered in favour of his daughter Bhavierti it ”
Nail: in the joint family property and rather’ ti§e”g,ift was greeted to’defei1t
the rights of the petitioners. As per S,132a’ot” Reforms ._
finding of the Tribunal based on the Cijirii~Court.”s orderx’-.5; r£tt§1ity’V’aiid the ” V
Civil Court is barred to giveerty .OiS’7i1fA19?it was filed
wherein Bhavani was not thei’;;’ie.intiff_:.itii tiL:8t£i_tV for bare injunction
and the suit was d¢;?1–g,§d injiiie ilisiiinot binding on the
Land sg;1%.5ee;1. The fact that
Devappe in Sy.Nos.483i2, 483f2A,
483/’3 ziitd of ii Manager by itself shows the joint
holding of and accordingly, the petitioners are
entitied» to their sliere of the iaroperty. As such. the order of the Land
* to tiieiiiseme, is tritiated. Since ail the properties are
the gift made in favour of Bhavani by Devappa Neil:
is {awe and more over, there is no such gift deed registered
in her ‘fasri;ur. As such, the Land Tribune} committed an error in granting
” « . V’ oectipancy rights in her favour.
Per contra, it is the argument of die counsel representing the
respondents that from the year 1947 itself Devappa Naik is declared as a
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‘pmteeted tenant’ during the life time of his father. It is for the jiartiee
alleging jointness to prove the same. Accordingly, in sugpertf it
argument, learned counsel relied upon the decision in the ef ._ i
Krishnarao Ktmgo Vs Narayam pm: Kang-fie 3 ._.. l;4IR”I9l§4 “J29
and Me’. Rkukhmabai Vs ma Lmumaraym’ & t’.?rs – A1i:;;:9§s0 SC ‘.235 A
It is his further ease that the portion cf in
favour of the Municipality indziegites he exel1ie’iveh/i held the
tenancy rights over the learned counsel
subrnitted that the on the Land
Tribunal, but theseiine ‘L*e:_£e:l€eg1 into In this context,
learned co_u_n_eel_ ‘e:_§i£;iilili’e,il.i’of’ Chikkepuxtagamda Vs
Gururtgia:’J{ao._~–Ii9l8i2’l'{E} ‘ -l
is fixiztherieiéument that Devwpa Naik was acting as Kartha
of the properties but the tenanted lands were not
imeritienetivefizee’ i!Via’aaetl1e exclusive property of Devappa. Even Bhavani
paid rentals to the landierd as a s’ub–tenant and
l3″»-‘..__’eccerdi1:gi3{__ieontended that there is no error in the order of the Land
“:t’:;hunai;
In the light of the arguments advanced, let me consider Whether the
impugned ordef passed by the “fribunai requires interference.
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Petitioners’ counsel has relied upon the provisions of the Bomliay
Tenancy & Agricultural Lands Act as regards the definition “‘peiotecteé-V _
tenant’ which says, if a person has been deemed to be_eig:ro_t:ecte’d.:tcnant it
under 3.3, 3A and 4 of the 1939 Act referred! to i;1:As’c1.aee;;1e;,’ ‘lieishell it c if
recognised to be a protected tenant. Aeper S3, he shall Aiiviptotectedc V
tenant in respect of any lands if he has’ the lande_i_co2r.tiii11oi,;sl§l’iifor it
period of not iess than six yeare.v_.;ireeedi1igithei day of
January 1938 or the firs! day oil’ cultivated such
lands personally even the case of
the respondent ._Naik was shown in the
Haklmpatt’e.19tiGthe:ihes’in-rt.giiged the property to Kumta
Urban in in Sy.Nos.483 and 506!1B.
Similarly, another it 24.7.1968 in respect of six properties
_ which not in arty support the case of the respondent that she is
«eztclusiixep ottizer of the property in question. According to the
a ‘protected tenant’ during 194′? as submitted by
the res1.%onde_tit’eViAcoiinselhirnself. Ifit is really so, as per the provisions of
AABomhe’3*._.ii’enancy & Agricultural Lands Act, he should have been a
i teoaaot, and cultivation six ycaae prior to 1938 or 1945 but, he
as ‘protected tenant’ as on 1947. Then necessarily it cannot be
it ». fiaid that he was holding the property exclusively as a tenant and the father
of Devappa Nail: viz, Venku Narayana Nail: should have been 3
3%”
‘protected tenant’ and if it is so, the properties though registeredhin the
name of Devappa Naik, should have been in favour of and on
the joint family.
The Land Tzibunal in its order has observed, exeep-t” S§*.1*~T:(_i;’4v&?’g3;’i2Is,,7’i _& it ‘»
483/2A and 48313, the other properties caonfiotibee termed’
properties as there was no cogent evidence on it has ‘azsd
observed that there is no such divisioza._:of_the oiopenies joint it
family members. 30, the vt’«1’3?.iTril_:11:1aliiiis’ to effect that
there is jointness in the es’ petitionezs. But, the
Tribunal has also observed thhetif are joint family
propertiesineiudiilé=fr;f1eL’sehedoie”properties, immediately after the (teeth
of Venku Naujayana °NoiRA:th.ere”..wou}d have been an entry. But there is
on13{Va:~.3a entry htiespeet of three of the properties mentioned above.
V is an entry on 22.7.1966 but there is no mentioning of
A i”‘ti1e«:humbers. However, the Land Tribunal has noted that
‘pioteeiegtriglitsi has been mentioned in favour of Devappa Venku Naik
55.4973 and 3955 and no where it is entered in the capacity of a
of file joint family. Based on the same, the Land Tribunal was of
V’ tlée View that the schedule properties were all separate tenanted lands of
Devappa Nail; and as such, he had a right to gift the property in favour of
his daughter i.e., Sy.No.506f1 to an extent of 1.28 acres. Further it
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appears on the basis of the consent given by the applicants, the in
Sy.No.2G to the extent of 1.3′? acres was granted in favour of
Hanurnanth Nails: and legal representatives of Laxman .i’L:’Also,. V.
noting that property in Sy.No.483f2K , 2A 1 herited ii ” it
and that residential houses of the legal tepregenteiixées. tiiei
same has been ganted in their fav.»,ro1zr__ fliusiiideoiivinge. the L.
tenented properties via, Sy.No.50-61K . _V ¢_ ‘
in the decision in the ease orxeigig & Ofs 349 Cluanan
Paswan & Ors –. AIR 19544iSt?_’34e.£~i1e§’ Ag; has held that the
decree passed withotit ‘Tfiie order of the Land
Tn’bunal1._is decree. However, in this regard it is
to be noteti got powers to grant ittterim order
iikemanction aniI..tlieiAmendrnent Aet bars the jurisdiction of the Civil
it of the above ratio laid down by the Apex Court, the order
A “~ pasisetixbyv4ttaeV:VCtiiz.-‘t–:Whioh is not competent, is non-est.
V Althoughiiit is argued by the respondent’s counsel referring to the
‘in the ease of Gorie Gouri Naidu (minor) & Am’ Vs
~f_* iiaaoama Bodamma & Ors – ma 1997.51: 393 inter-party judgment
given by the competent court binds the parties even if it is erroneous and
V the fact remains that by virtue of the amendment act when the Land
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Tribunal is given power to adjudicate the rights even
possession, the parties have approached the Civii Court _
order which has no jurisdiction. More over, the otiostion
also not been defended by Bhavani Gangadhar who iitnot’ ‘ax .’
the original suit in the cm’; csiurug such’; §isua:iop,~’;:aeg§s§a:vi§§g the _
finding given by the Civil Court by mjun¢::§n&’pa.{es iiotflliiztd the
panics. Even though it is -Npaik teas ‘protected
tenant’ as on 194?, he does of ‘protected
tenant’ as provided the presumption
is always in fajaloitfof ‘
of Makium Sing]: (D) by LR:
Vs Kulmmt LSZe’;_;gIe_- 351$’ zgaéiiggc ms, alfitough it is observed that the
could not i})1’6S’1i’.fned to be a joint famiiy property moiety
in exiotenoe of joint hindu family, the fact remains that one who
iiasseftsp the property is a joint family property.
_ _ Krisimarao Kangcfs case referred to supra, the three
« iudgeeefiench of the Supreme Court has held that the burden shifts to the
H aileging self acquisition to establish affirmatively that the property
was acquired without the aid of the joint famiiy funds. The fact that when
the respondents failed to prove tl1e):ffi1’e protected tenants as mentioned in
the enabling provision, though it is mentioned so as an L3.1948, it was for
them to establish that he was a protected tenant as prescribed. The thrust
of ihe argument of the respondent’s counsel is that the the
schedule lands is held by Devappa Naik exclusively as
established merely by producing some documents ozfifiae
joint family. Might be that there would 15;’ 5
of the joint family but that itself weuid mi 2;e§”su1=:ici.~;aiz”.:m’f ham is _
holding the tenanted land exclusivéiyjfu the ante;-gsse 51* ugiget fmnilyi
Even the Tribunal has also”‘i:9t properly.
Mom over, it is for Devappe to establish the fact that Tends exclusivety held by
him in the cixcn{i:1st5ii¢e*sii:;r oiiie ratio laid down by the i
AP€XC01n’iinSfl§Bvfl!’Adi: Knslxn’
.. _ _In the above the impugned order of the
is remitted to me Land Tribunal, Kumta
iv dispch aecori . with law and the cmnphance’ of the provhions
Egule 17 of the Land Refonns Rules, after afibtding
C . * £9 the parties. Petition is allowed.
Ifidfi